Schattman v. Texas Employment Commission

"No employee anticipating maternity confinement may remain in active service with the commission later than two months before the expected delivery date. An earlier separation will be required if the employee's physical condition interferes with satisfactory performance of her normal and customary work assignments.

"Each employee anticipating maternity confinement shall, at the earliest practicable time, inform her immediate supervisor of the expected date of confinement and the name of her attending physician. This information, along with a specific description of the employee's work assignments, will be transmitted through channels to the Personnel Office. The appropriate Department Head or District Director shall thereafter, as circumstances warrant, make recommendations consistent with the purposes of this policy.

"An employee separated from the payroll in good standing under this policy, may, upon written application, be granted maternity leave without pay for a period not to exceed six months. If, at the end of that time, she has neither resigned nor been reinstated, she may request in writing one extension of not more than six months. Failure to apply for reinstatement or refusal of reinstatement offered before the expiration of an approved leave of absence will be treated as voluntary resignation.

"Reinstatement following maternity leave is not automatic. Each request for reinstatement will be reviewed and acted upon after consideration of current personnel needs and the employees' previous work record with the commission."

"Reference is made to my memo of 12-4-69 notifying you of the subject employee's expected maternity confinement.

"A month ago, her physician told her he saw no reason why she could not work up to two weeks before expected confinement. She plans to seek temporary work elsewhere after TEC's seven month requirement.

"In view of the fact our maternity leave policy is some 14 years old, is it possible that this restriction has been relaxed?

"Mary Ellen does not work with the public, but is an analyst in the District Office working at a desk. The work is not of a nature to appear that it would harmful to her to continue past seven months. Once a month she prepares a report and makes one count in the local office, but this is done in the closing hours of the day, 4 P.M., or early in the morning in a booth. We are now training the clerk to do this work as a back up to the analyst during absence, even though the analyst will continue to prepare on regular basis because of information we are able to pick up which is helpful in analysis."

"I am a labor market analyst in the Austin District Office. On April 24, 1970, I was informed by my supervisor that May 29, 1970, would be my last day active duty under the TEC maternity leave policy. My expected date of confinement is August 1, 1970, and the doctor anticipates no reason why I could not work until two weeks prior to that date. Attempts were made through channels to secure a regular leave without pay which would allow me to continue until mid-July. Mr. Speer made the final decision on April 23, that the policy would be observed.

"I have filed a charge with the Equal Employment Commission protesting the TEC's maternity leave policy as violative of the 1964 Civil Rights Act, Title VII, prohibitions against discrimination according to sex.

"I will not voluntarily sign the separation report. Nevertheless, I wish toPage 35preserve my rights to reinstatement, and I will therefore sign the form only if ordered to do so.

"I regret that my action is necessary, but I wish to be a career employee and I do not feel that my condition warrants such a long disruption of my work."

"You (sic) letter of May 10, 1970, indicates you may have some misunderstanding of the Commission's maternity leave policy on two points. First, the policy stipulates that no employee anticipating maternity confinement may remain in active service with the Commission later than two months before the expected delivery date. Second, reemployment is not automatic. Each request for reemployment is received and acted upon after consideration of current personnel needs and the employee's previous record with the Commission. Reemployment after separation from the payroll for any reason, including maternity, is at the discretion of the Commission in accordance with the Merit System Regulation.

"The Commission's maternity leave policy was adopted in 1956 after consideration of many factors including medical opinion, employee welfare, employee efficiency, and practices of other organizations, both public and private. The Commission believes it to be in the best interest of the employee and the agency. I am sorry that you do not agree.

"Please do not be concerned about having to sign a separation report. Employees are not required to sign these reports."

"By virtue of female physiology, the Defendants' policy applies solely to women. Women are terminated not because of their unwillingness to continue work, their poor performance, or their need for personal medical safety, but because of a condition attendant to their sex. This is the very type of discriminatory regulation condemned by the interpretive regulations of the Equal Employment Opportunity Commission.29 C.F.R. § 1604.1(a) provides in part that

The principle of non-discrimination requires that individuals be considered on the basis of individual capacities and not on the basis of any characteristics generally attributed to the group.

In view of this provision, Richards v. Griffith Rubber Mills,300 F. Supp. 338,340(D.Or. 1969), concluded that `the law no longer permits either employers or the states to deal with women as a class in relation to employment to their disadvantage'.

"Although Defendants' policy is thus violative of42 U.S.C. § 2000e-2(a), it can be sustained by showing under 2000e-2(e) that it `is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise'. To prevail under this exception, according to Weeks v. Southern Bell Telephone Telegraph,408 F.2d 228,235(5th Cir. 1969),

* * * an employer has the burden of proving that he had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved.

Defendants clearly did not sustain their burden under this exception. They based their policy on mere historical reasons, which have not been reexamined for fourteen years. This Court is convinced that there was not such an impairment of efficiency, if any, as to justify TEC's outmoded policy. Indeed, defendants took almost as much time to replace Mrs. Schattman as would have been required by her doctor for the childbirth and recovery.

"For the foregoing reasons, plaintiff's request for relief declaring the defendants' maternity leave policy invalid is accordinglygranted,and defendants are permanentlyenjoinedfrom maintaining this policy. This is not to say that TEC or any other employer cannot have such a policy based on individual medical or job characteristics, but it does mean that broad policies not so justified are contrary to law."

"Title VII generally forbids in the context of employment, discriminationPage 37against any individual `because of such individual's race, color, religion, sex, or national origin'. The Act's proscriptions are directed at employers, employment agencies, and labor organizations, each of which is forbidden to engage in certain defined `unlawful employment practices'. See Title 42, U.S.C.A. §§ 2000e-2, 2000e-3." Sanchez v. Standard Brands, Inc., 5 Cir., 1970,431 F.2d 455,457.

"It shall be an unlawful employment practice for an employer — (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin."

"It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or nationalPage 38origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin."

"The case must be a strong one indeed, which would justify a Court in departing from the plain meaning of words, especially in a penal act, in search of an intention which the words themselves did not suggest. To determine that a case is within the intention of a statute, its language must authorize us to say so [United States v. Wiltberger, 5 Wheat. 76, 96,5 L.Ed. 37]."

"We have some thirty-two susceptible young women there who are a constant problem in all phases of their work, starting in the last trimester of pregnancy."

"The Equal Protection Clause of theFourteenthAmendment does not require `identity of treatment' for all citizens (Walters v. City of St. Louis (1954)347 U.S. 231,237,74 S.Ct. 505,98 L.Ed. 660), or preclude a state, by legislation, from making classifications and creating differences in the rights of different groups (Griffin v. Board of Sup'rs of Prince Edward County (1964)377 U.S. 218,230,84 S.Ct. 1226,12 L.Ed.2d 256). It is only when the discriminatory treatment and varying standards, as created by the legislative or administrative classification are arbitrary and wanting in any rational justification that they offend the Equal Protection Clause. (McGowan v. Maryland (1961)366 U.S. 420,426,81 S.Ct. 1101,6 L.Ed.2d 393). Specifically, a legislative classification based on sex, has often been held to be constitutionally permissible. See West Coast Hotel Co. v. Parrish (1937)300 U.S. 379,394-395,57 S.Ct. 578,81 L.Ed. 703, 108 A.L.R. 1330 (statute providing minimum wages for women but not men); Radice v. New York (1924)264 U.S. 292,296-298,44 S.Ct. 325,68 L.Ed. 690(special statute limiting hours of night work of women in cities with a particular population); Goesaert v. Cleary (1948)335 U.S. 464,69 S.Ct. 198,93 L.Ed. 163(proscribing use of women as licensed bartenders) (cf. McCrimmon v. Daley (7 Cir. 1969)418 F.2d 366,369-371; and Seidenberg v. McSorleys' Old Ale House, Inc. (D.C.N.Y. 1969)308 F. Supp. 1253,1260* * * ); Hoyt v. Florida, 1961,368 U.S. 57,82 S.Ct. 159,7 L.Ed.2d 118(jury duty voluntaryPage 41for women but compulsory for men). (On the other hand, a complete proscription of women jurors is violative of constitutional rights. White v. Crook (D.C.Ala. 1966)251 F. Supp. 401,408); Miskunas v. Union Carbide Corporation, 7 Cir. 1968,399 F.2d 847,850, cert. denied393 U.S. 1066,89 S.Ct. 718,21 L.Ed.2d 709(denial to wife, but not to husband, of right to recover for loss of consortium). (See, however, Kanowitz, Constitutional Aspects of Sex-based Discrimination in American Law, 48 Neb. L. Review 131, 143-151 (1968). This article, it seems, was written prior to the denial of certiorari in Miskunas); Gruenwald v. Gardner (2nd Cir. 1968)390 F.2d 591, cert. denied393 U.S. 982,89 S.Ct. 456,21 L.Ed.2d 445(women given more favorable treatment in social security benefits than men); United States v. St. Clair (D.C.N.Y. 1968)291 F. Supp. 122(men subject, women not, under Selective Service Act); Clarke v. Redeker (D.C.Iowa 1966)259 F. Supp. 117(fixing wife's residence by husband's but not the reverse); Heaton v. Bristol (Tex.Civ.App. 1958)317 S.W.2d 86, cert. denied359 U.S. 230,79 S.Ct. 802,3 L.Ed.2d 765and Allred v. Heaton (Tex.Civ.App. 1960)336 S.W.2d 251, cert. denied364 U.S. 517,81 S.Ct. 293,5 L.Ed.2d 265(both involving denial of right of women to attend an all-male state-supported college).